1. HAMOODUR RAHMAN, J.-This appeal, by special leave, is directed against an order of the Custodian, Evacuee Property. Leave was granted on the 26th of February, 1960, to consider the contentions raised in the following ground only :- "That in any case the order of the learned Custodian is without jurisdiction as the father of the petitioner had no power or authority to raise this issue on behalf of the petitioner before the Deputy Custodian (General) and in the eye of law there were no proceedings whatsoever pending before the Custodian in relation to the status of the petitioner as to whether he was evacuee or otherwise.
2. As such, the learned Custodian's order is void for this reason alone."
3. The appellant before us is one of the grandsons of one R.I Bahadur Lala Dhanpat R.I, who died sometime in the year 1931 seized and pos--sessed of extensive immovable properties situated at Lahore and leaving him surviving one son Lala Dinanath Mehra and three grand-sons, the appellant and his brothers Jagmohan Mehra and Ram Krishan Mehra. They originally constituted a joint Hindu family governed by the Mitakshra school of Hindu Law, but later when Dinanath Mehra embraced Islam disputes and differences arose among them. These were ulti--mately referred to arbitration and an award made which became a rule of Court by the decree of the Civil Court passed on the 11th of July, 1934.
4. By this award the grand-sons Dhanpat R.I were awarded all the properties left by the latter except one situated at Beadon Road, Lahore and ten marlas of land out of the compound of No. 4- Ferozepur Road (now Queens Road), Lahore which were given to Dinanath Mehra. He was also awarded Rs. 700 per month by way of maintenance for life. This amount was to form a charge on all the properties of Dhanpat R.I. In addition to this Dinanath was given the exclusive right to manage all the properties curing his life time and no one was to be entitled to take any account from him for his dealings with the income and profits of the properties.
5. Among the properties awarded to the grandsons there was a building situated at No. 4- Chamberlane Road, Lahore. This was let out to mostly non---Muslim tenants, Dinanath, who bad assumed the Muslim name of Sh. Din Muhammad, had also appointed a contractor for the realization of rents from the tanants of this premises.
6. One of the grandsons of Dhanpat R.I, Jagmohan Mehra shifted some--time in 1945 to Manipur State in Assam (India) to look after his business there. The other two resided at Lahore. After Independence Jagmohan continued to remain in India and to retain his Indian nationality. Ram Krishan Mehra, however, continued to remain at Lahore and ultimately he too embraced Islam in May, 1949, and adopted the name of Sh. Riaz Ahmed.
7. The appellant Hari Krishan continued to live at Lahore till Decem--ber, 1948, when he claims that with a view to liquidating his business in India he went there after obtaining a permit from the authorities in Pakistan. This permit was valid for three months only but the appel--lant remained in India even after the expiry of this period and did not return to Pakistan till 1952. Thereafter in September, 1953, he applied for and obtained a certificate or citizenship under section 20 of the Pakistan Citizenship Act, 1951.
8. The non-Muslims tenants of No. 4-Chamberlane Road, however, all evacuated to India after Independence. Consequently, the Rehabilitation Department allotted the portions of the said premises vacated by them to refugees coming from India. These allottees refused to pay rents either to Dinanath alias Sh. Din Muhammad or his contractor. Thereupon, Dinanath alias Sh. Din Muhammad applied on the 18th March, 1952, under section 18 of the Evacuee Property Ordinance No. XIX of 1949 for a declaration that the said property, bearing No. S-49-R-4, Chamberlane Road, Lahore, was not an evacuee property. In this application the grand-sons of Dhanpat R.I were joined as respondents but nothing was said therein about the award regarding the properties of Dhanpat R.I. Dinanath alias Din Muhammad just claimed that he was entitled in his own right to recover the rents and profits thereof and that as he himself was not an evacuee, the property could not be treated as evacuee property. Subsequently on the 16th of December, 1954 another amended application was put in which gave the history of the case and disclosed that the right that Dinanath alias Din Muhammad claimed in this property was in the nature of a life estate. The allottees were originally not made parties to this application but subsequently by a further amended peti--tion filed on the 25th of March, 1953, they were also added as parties.
9. In the petition as originally filed the addresses of the appellant and Jagmoban Mehra were not given and Dinanath alias Din Muhammad applied for and obtained an order for substituted service by advertisement in the Civil & Military Gazette. They did not, however, enter any appearance and the case was directed to proceed ex parte against them. The only persons, who then opposed the application, were the allottees who claimed that the property was evacuee property. Subsequently, the appellant appeared as a witness in the case in May, 1964, and disclaimed all interest in the property. According to him it belonged to his father and he had no concern at all with it. In the course of his examination he further asserted that he had never been declared as evacee, as he had gone out of Pakistan on a permit in December, 1948, returned in July, 1952, and since then had been continuously living in Pakistan and had, in fact, obtained, a certificate to the effect that he is a Pakistani citizen.
10. In view of the serious contest set up as to the status of this pro--perty the Deputy Custodian, before whom the proceeding was pending, entered upon an elaborate investigation and adopted the procedure of a suit. He framed issues on the 20th of April, 1955. These were to the following effect :-
(1) Whether the R. A. Is treating any of the respondent Nos. 2 to 4 as evacuee ?
(2) If so, whether any of the said respondent is not an evacuee ?
(3) Whether the property is exclusively owned by the petitioner ?
(4) If the issue No. 3 is not proved whether the petitioner has life or any other interest in it ?
(5) What is the effect of the admission by the respondents Nos. 2 and 3 that the property is owned by the petitioner ?"
11. After this further evidence, both oral and documentary, was adduced and witnesses cross- examined at length by learned counsel appearing on behalf of the various parties, Jagmohan.
12. However, did not appear even at this stage and the proceedings were held ex parte as against him.
13. The Deputy Custodian by his order of the 10th of January, 1956, came to the conclusion that although the title of the property vested in the grandsons of Dhanpat R.I under the decree of the 11th of July, 1934, Dinanath alias Din Muhammad bad the right to manage it and to realise its income during his lifetime, but he did not go into the question as to whether the holders of the legal estate had become evacuees and. If so, whether Dinanath alias Din Muhammad could still claim the right to manage the property. He thought that it was not necessary for him to decide whether any one of them was an evacuee or not and accordingly he made a note in his order to the effect that he expressed no opinion as regards the status of the grandsons of Dhanpat R.I or as to the nature of their interest in the property.
14. This order was subject to confirmation by the Custodian, but as neither side was satisfied with it, both preferred appeals. Dinanath alias Din Muhammad contended that the Deputy Custodian was wrong in holding that he was not the full owner and in leaving the question of the status of the grandsons of Dhanpat R.I open. According to him it was clear from the records of the case that they were non-evacuees and the Deputy Custodian should have so held.
15. The appeal on behalf of the allottees was, it appears, subsequently withdrawn and dismissed on the 12th of April, 1956. The Rehabilitation Authority did not file any appeal but presented written objections. It also contended that the order of the Deputy Custodian should not be confirmed.
16. At the appellate stage Jagmohan presented himself and wanted to have his statement recorded.
17. This was allowed and his statement was recorded. He admitted that he was an Indian national and maintained that he was entitled to inherit the property after his father's death and that he had never waived or relinquished his rights in the property. The Deputy Custodian (General), who heard the reference by the Deputy Custodian and the appeal, came to the following findings by his order.
18. Dated the 12th July, 1956 :- "(a) Neither Din Muhammad petitioner nor any of his sons Hari Kishan, Jagmohan or Riaz Ahmad alias Ram Kishan are evacuees.
(b) No portion of the property left by R.I Bahadur Dhanpat R.I (and this includes the property which is now in dispute) is evacuee property.
(c) The entire property left by R. B. Dhanpat R.I including the pro--perty in dispute was inherited by Din Muhammad petitioner as the sole heir and the only son of R. B. Dhanpat R.I.
(d) Sh. Din Muhammad who was, according to the decree of the Civil Court, full owner of a portion of the property and life owner of the other part with some restrictions is really the full owner of the property in dispute, as also of the entire property left by R. B. Dhanpat R.I.
(e) With the relinquishment of their respective claims by his sons, DinMuhammad has acquired full ownership rights of the entire property left by his father including the property in dispute, and can sell, mortgage or otherwise dispose of the property in any manner . . . . . ."
19. The Rehabilitation Authority being dissatisfied with this order went up in revision before the Custodian, Evacuee Property. During the pendency of this revision proceeding Dinanath alias Din Muhammad died and on the application of the Rehabilitation Department two ladies Gulzar and Razia Begum, who claimed to be the widow and daughter of Dinanath alias Din Muhammad, and the three grand-sons of Dhanpat R.I who were already on the record as respondents, were also recorded as the legal representative of the deceased.
20. Before the Custodian the appellant filed by way of additional evidence a certificate granted by the Deputy Commissioner, Lahore, stating that the "office record shows that he went to India on a valid permit issued by the then Punjab Government on 14-12-48 in the capacity of a Pakistan national."
21. In view of the death of Dinanath alias Din Muhammad during the pend--ency of the proceedings the learned Custodian took the view that the only question necessary to be decided then was as to whether the grandsons of Dhanpat R.I, in whom the properties now vested under the decree-of 1934, were evacuee or not. He then dealt with the evidence on the record and came to the conclusion that the appellant and Jagmohan had become evacuees and whatever rights they had in the property in dispute had become evacuee property. Ram Kishan alias Riaz Ahmad was, however, held to be non-evacuee and, as such, since more than 50% of the shares in the property belonged to evacuees, the Rehabilitation Department was authorised to take over possession of them and to realise the whole of the income thereof. Out of the realizations one-third was directed to be paid to Ram Kishan alias Riaz Ahmad.
22. It is this order that the appellant now seeks to challenge mainly on four grounds, namely : (i) that on the death of Dinanath the revision before the Custodian abated, as the right to seek a declaration under section 18 of the Evacuee Property Ordinance, 1949, being a personal right did not survive, (ii) that the Custodian had no jurisdiction to adjudicate upon the status of the appellant or of his brothers, since the proceedings questioning their status was pending before him, (iii) that the Custodian had no jurisdiction to make any declaration with regard to any property other than 4-Chamberlane Road in connection with which alone the application had been filed, and (iv) that none of the properties could now be made evacuee by reason of section 3 of the Administration of Evacuee Property Act, 1957, as the legal estate vested in the appellant and his brothers only on the death of their father on the 7th of February, 1957, which was after the relevant date mentioned in section 3 of the said Act.
23. The appeal has been filed by Hari Kishen alone and originally the only respondent in the appeal was the Custodian of Evacuee Property. But after leave was granted, on the 26th of February, 1960.
24. Mst. Gulzar Begum and Razia Sultana claiming to be the widow and daughter of Dinanath, applied for being joined as respondents and their application was allowed on the 11th of November, 1960.
25. Thereafter, in November, 1961, Sh. Maqbool Ahmad, who claims to be in possession of Bunga--low No. 5-Queens Road, Lahore, applied for being joined as a re3pon--dent in this appeal on the ground that since this was also one of the properties left by the late Dhanpat R.I, it is liable to be treated as an evacuee property in consequence of the impugned order of the Custodian. He further claimed that he had already applied for the transfer of the said Bungalow as a displaced person in possession thereof since 1947, and if the present appeal succeeded, his rights to claim the transfer of the said property would be seriously affected. By an order made on the 3rd of November, 1961, he was allowed to be joined subject to all just exceptions. Lastly in March, 1964, Jag mohan made an application for being joined as a respondent. He too was allowed to be joined subject to just exceptions by an order made on the 25th of March, 1964.
26. The appellant has opposed the addition of Sh. Maqbool Ahmad as a respondent on the ground that he was at no earlier stage of the proceedings a party nor was the status of any other premises left by Dhanpat R.I, other than No. 4-Chamberlane Road, in issue in those proceedings. The decision of the question as to whether Sh. Maqbool Ahmad is a necessary or a proper party in this case is, therefore, dependent upon the third question raised in this appeal on behalf of the appellant, namely, as to whether the Custodian had any jurisdiction to make any declaration with regard to any property other than 4-Chamberlane Road. I propose, therefore, to consider these together, but before doing so I think it would be appro--priate at this stage to dispose of the objection raised by the other respondents to the addition of Jagmohan. It is contended that be has neither any right to come in at this stage nor will any useful purpose be served by joining him now. He never applied for leave to appeal from the order made against him by the Custodian and, therefore, he cannot by this indirect method now be allowed to come in and support the appeal. The question of his status has been finally decided and the time for questioning that decision has long since expired. He is, furthermore, on his own admission an Indian national. There can be no doubt, therefore, as to his evacuee status.
27. It appears to me that there is substance in this objection. He appeared before the Deputy Custodian (General) at the appeal stage and made a statement admitting that he was an Indian national and that at the time of Independence he was living in Calcutta. He says he came back to Pakistan in 1949 but there is nothing on the record to support this assertion. His own father did not give his address in the application under section 18 and at Dinanath's request notices were served upon him by advertisement in March, 1952. Even so he did not enter appearance and the case proceeded against him ex parte. He made his appearance only in July, 1956, when arguments in the appeal before the Deputy Custodian (General) had been partly heard. This clearly shows that even if he came to Pakistan in 1949 he did not remain there. He also admitted that in the life-time of his father he had no interest or title in the property. It is, however, contended on his behalf that this property could not be treated as evacuee property under the Pakistan (Administration of Evacuee Property) Ordinance, 1949, for, he was not a person who had on account of the setting up of the Dominions of Pakistan and India or on account of civil disturbances or the fear of such disturbances left Pakistan, or who had acquired any property by way of allotment in India. His case appears to me, however, to b governed by section 2 (c) (ii) of the said Ordinance, for, he being a resident within the territories now comprising India was a person whose property in Pakistan bad ceased, at any rate, after the death of his father Dinanath to be occupied or supervised or managed by any person whose authority or right so to do had been accepted or approved by the Custodian. He has, therefore, in my view, nothing also to gain by being added in this appeal. His application for being added as a party is, therefore, rejected.
28. Coming now to the points urged in support of this appeal I take up first the question as to whether the revisions before the Custodian could be continued after the death of Dinanath. The sons of Dinanath, as already stated, had been made respondents in the application under section 18 from the very beginning and as long ago as the 20th of April, 1955, the Deputy Custodian had framed an issue for determining as to whether the respondents Nos. 2 to 4 therein, namely, the sons of Dinanath, were evacuees, although ultimately he did not go into this question. He considered it unnecessary to do so, since he had found that Dinanath had in his lifetime the full right to enjoy the incomes and profits of the properties left by Dhanpat R.I under the compromise decree dated the 11th July, 1943. But the appellate Court did go into this issue and decided that they were not evacuees. The Rehabilitation Authority wanted this finding also to be reversed in revision by the Custodian. They were already before the Court as respondents in their personal capacities and the question of their personal status was also very much in issue in those proceedings. This was not a case, therefore, of substitution of the heirs of a deceased respondent but actually one of merely making an entry on the record to the effect that they were also the heirs and legal representative of one of the deceased --respondents. No question, therefore, of abatement of the proceedings does, in my opinion, arise. The revision was, in every way, competent as they were all along impleaded as respondents and their father too was a respondent at the revision stage.
29. The second contention of the appellant is that since the proceedings before the Custodian Authorities originated on an application of Dinanath for a declaration that the premises No. 4- Chamberlane Road alone was not an evacuee property, the Custodian Authorities had no jurisdiction to adjudicate upon the status of the appellant or his brothers. I am unable to accept this contention either, for, the question as to whether the appellant and his brothers were evacuees or not was, as I have already pointed out, expressly raised and an issue was struck by the Deputy Custodian for the deter--mination of this very question. The fact that the Deputy Custodian ultimately left the issue undecided makes no difference. The appellate authority did actually go into this question and decided the issue. The decision of this question was, in any event, involved in the decision of the question as to whether any particular property is evacuee property or not, for, by the definition given in subsection (3) of section 2 of the said Ordinances"' evacuee property" means any property in which an evacuee has any right) or interest. Even assuming that the initial question raised before the Custodian Authorities was as to the character of premises No. 4- Chamberlan Road alone it had of necessity to be decided whether any right to interest in this property belonged to an evacuee or not. In this care a specific issue had, therefore, to be raised with regard thereto and a decision given.
30. The powers of the Custodian Authorities, it has been contended by Mr. Brohi appearing for Sh.
31. Maqbool Ahmad, are not necessarily circum--scribed by the procedural provisions of the Civil Procedure Code and a has been observed by this Court in the case of Sungreen & Co. Limited v.
32. Qamardin Muhammad Hashwani and others for the due discharge of his function "It is essential that the Custodian should have the widest power that may be necessary for the ascertainment of what is and what is not evacuee property". In the present case however. It is not necessary to invoke in aid these wide powers, for, the determination of the status of these person was not only essential for the determination of the nature of the property -but also fairly and squarely raised.
33. The Custodian Authorities had, therefore every jurisdiction to decide this question.
34. The third contention raised on behalf of the appellant is that the Custodian had no jurisdiction to make any declaration as to any property other than 4-Chamberlane, Road, for, the application under section 18 filed by Dinanath asked for a declaration only with regard to premises No. 4- Chamberlane Road and no other property. The facts and circumstances with regard to the other properties were never raised or brought on the record. Their existence was brought to light only by the production of the compromise decree. It is not known if any other person is interested in these properties or whether they had ever been allotted to any evacuee or treated as evacuee property.
35. It is not even known if Dinanath had or his sons have still any subsisting interest in these properties.
36. For the first time the question of the status of one of these, namely, 4-Queens Road, has been brought up in this Court by the applica4ion of Sh. Maqbool Ahmad to be joined as a party. He was, as already indicated, never a party at any stage of these proceedings but it has been argued on his behalf that it is not necessary that this question should have been specifically raised before the Custodian, for, the latter had transcedental powers and he could bring within the fold of his enquiry any property other than those mentioned in the petition of Dinanath, particularly, since the existence of these properties had been brought to his knowledge by the produc--tion of the compromise decree of 1934. This argument, although attractive overlooks the fact that, however extensive the powers of the Custodian might be, he is nevertheless a functionary charged with the duty of exercising judicial functions and as such, he has at least to observe the basic rules governing the discharge of such duties. One of these basic rules is that there must be a lis before there can be any adjudication. In the present case this basic requirement was lacking. Apart from this it was also overlooked that under section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, no property could be treated as an evacuee property if it had not been so treated before the 1st day of January, 1957. There is a difference between treating a property as evacuee property and declaring it as such. There are, no doubt, also certain exceptions to this statutory rule but who applied his mind to these questions 7 Was any enquiry held to find out whether any of the properties, other than 4-Chamberlane Road, fell within the category exempted under subsection (1) of section 3 of the Act of 1957 or whether they came within the exceptions mentioned in subsection (2) thereof 7 No material relevant for the purpose was brought on the record, as no one ever suspected that the status of these properties was in issue. The provisions of section 3 of the Act of 1957 apply notwithstanding anything else contained in the said Act.
37. It was, therefore, in my view, necessary for the Custodian to have applied his mind to these and other relevant questions before including the other properties with regard to which no declaration was sought within the ambit of his order. It does not necessarily follow that if a person is declared an evacuee that is by itself sufficient to make all his properties evacuee properties, for, the provisions of section 3 have an overriding effect.
38. Mr. Brohi, appearing for Sh. Maqbool Ahmad, has also frankly conceded that the proceedings when initiated were confined to No. 4-Chamberlane Road. If this be so, then in the absence of anything upon the record to show that the scope of the enquiry was ever consciously extended to embrace the other properties of Dhanpat R.I as well, how can it be maintained that the order of the Custodian with regard to these properties was a valid or proper order: In this view of the matter I would hold that the Custodian exceeded his jurisdiction in revision in extending the declaration to all the properties mentioned in the compromise decree. Having come to this conclusion I would also disallow the application of Sh. Maqbool Ahmad for being added as a party. He has admittedly no interest in No. 4-Chamberlane Road and is, in no way, concerned therewith. The order of the Custodian, in no way, affects his rights, whatever they might be in Premises No. 4-Queens Road.
39. This should not, however, be treated as a declaration that any of these properties are non-evacuee properties. The Custodian Authorities will still have full liberty to decide this question if any when raised after considerating the position of each of these properties in the light of the evidence that may be produced in the proceedings, if any initiated for that purpose.
40. This brings me to the last question urged on behalf of the appellant that the premises 4- Chamberlane Road were, in any event, protected under subsection (1) of section 3 of the Pakistan (Administration of Evacuee Property) Act of 1957, as the legal estate therein vested in the appellant and his brothers only upon the death of their father on the 7th of February, 1957, and that was after the relevant date mentioned in the said section. This argument, however, does not appear to me to be tenable, for, the evidence on the record clearly shows that premises No. 4-Chamberlane Road were, at any rate, treated as evacuee property long before the said date and were actually allotted to displaced persons. Indeed, these allottees were actually made parties to the original application filed by Dinanath before the Deputy Custodian and they contested the same. It does not lie in the mouth of the appellant now to set up this claim.
41. It is unnecessary to consider the question as to whether the decision of the Custodian Authorities as to the status of the appellant and his brothers is correct or not, for, under the relevant evacuee laws the Custodian Authorities had the exclusive jurisdiction to decide this question and if they have decided it upon correct principles, then this Court will not interfere with such a decision. The decision of the Custodian Authorities in the present case is based upon a full consideration of the evidence adduced by the parties before them and it does not, in my view, appear to have been vitiated by the, disregard of any principle of natural justice nor does it suffer from any illegality apparent on the face of the record.
42. For these reasons I would allow this appeal in part and modify the declaration made by the Custodian only to this extent that they will be operative only so far as premises No. 4-Chamberlane Road is concerned and not with regard to the other properties left by Dhanpat R.I. The declaration as to the status of the appellant and his brothers would, in my view, be maintained. I would also reject the applications of Sh. Maqbool Ahmad and Jagmohan for being added as parties but I would leave the parties to bear their own costs, since the success in the appeal has been divided.